Anne E. Mullins*
“The opinion, as an expression of judgment, is an essay in persuasion. The value of the opinion is measured by its ability to induce the audience to accept the judgment.”
As a nation, we are deeply committed to the rule of law. Particularly with the rise of law and economics, we think of the people served by the judicial system as rational actors. And, while many of us recognize that our courts are inherently political institutions, we still think of our judges persuading us with only solid legal analysis. But we are not always rational actors, and judges do not persuade us with only their analysis. Judges capitalize on psychological tactics that influence us to do what they tell us to do or to conclude that their decisions are, in fact, the correct ones. These are the same tactics that market participants of all stripes, from big businesses to fundraising charities to kids selling lemonade, use to get what they want.